June 12, 2012

[Jill] Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”...

For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Much more detail at the link.

And here's the New Yorker article. For all the history, it's really another one of those articles — like the Jeffrey Rosen TNR essay we talked about yesterday — trying to shape public opinion around the potential Supreme Court opinion that strikes down the Affordable Care Act. Like Rosen, she says:

What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around....

And like Rosen, she ends with an embrace of the value that law and politics should be separate — even as, like Rosen, she nudges us to think that it's the conservatives on the Court who pose the threat:

The separation of law from politics... has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”...

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.

That's a strange way to end it, since federal judges are appointed and don't have to run for election. The independence of the federal judiciary isn't threatened by Citizens United. The independence of the federal judiciary, if anything, producedCitizens United — in which the Supreme Court, stocked with election-free judges, struck down a federal statute that was an effort by elected officials to control who gets to speak during elections.

And since we're talking about New Yorker fact-checking, I don't like: "the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns." Citizens United struck down a restriction on spending on one's own speech. It wasn't about contributions to political campaigns, i.e., funding.

Daliah Lithwick, law blogger at Slate, was on Wisconsin Public Radio this morning doing the same battlespace preparation as this New Yorker article. It's almost like it is a coordinated effort, but I know that can't be true because all of these journalists are independent seekers of the troof.

"Perhaps that's a fine point, but, there sure seem to be many journalists who don't get it."

It is NOT a fine point. It's a very blunt point, which is very obvious if you read the case at all.

Every time this point is missed in the media, it is either a deliberate attempt to mislead people or writing by someone who is so out of it and unqualified to be writing about law that they are simply misled by the media that did the deliberate misleading.

I'm not some fussy stickler for accuracy here. This is extremely important. I am telling you that this is propaganda. Do not slough it off!

Jill Lepore also wrote that awful book about the Tea Party that devolved into how much better and more diverse her daughter's elementary school in Cambridge, Massachusetts was as compared to the rest of the country.

The journalists get it, all right. Their industry is specifically exempted from the McCain-Feingold restrictions on political speech, giving media corporations a political as well as financial advantage.

It's in their financial interest to pretend Citizens United was about campaign funding. It's not likely to be an innocent mistake on their part.

It is all bolster by Buckley v. Vallejo in 1976 I believe. Want to get rid of Citizens United, then attack the underpinnings of that precedent. Good luck though. In effect, this is why precedent law shouldn't take precedent and allow laws to be judged on their own merits outside of prior precedent.

The next republican congress should repeal McCain-Feingold and instead make voter fraud a serious felony with mandatory prison time. And speaking of money, unverified credit card donations ought to be serious crimes as well.

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United

Sorry, but I'm not sure the present-perfect applies yet.

I'm not just playing grammar cop. A big part of the anti-Citizens-United paranoid fantasy on the left is to project its terrible consequence into the eternal now. We have never not been at war with Citizens United.